ALJDEC - Licensing
2023A-07531-CHC-ROC · Registrar of Contractors · 2024-04-22
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Mark MacVittie ,
COMPLAINANT
v.
T And S Roofing LLC
License No. ROC 272850,
RESPONDENT
No. 2023A-07531-CHC-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 2, 2024, 9:00 A.M.
APPEARANCES: Complainant Mark MacVittie appeared on his own behalf; Timothy Worth, Vice President, appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger Geddes
EXHIBITS ADMITTED INTO EVIDENCE: Respondent’s Exhibit Nos. 1-2; none submitted by Complainant
_____________________________________________________________________
FINDINGS OF FACT
Background and Procedure
1. T and S Roofing, LLC (Respondent), is the holder of License Number 272850 issued by the Registrar of Contractors (“Registrar”).
2. On or about July 5, 2023, Mark MacVittie (“Complainant”) filed a Complaint against Respondent with the Registrar alleging incompletion of roofing and construction of a patio roof by Respondent at a residence in Show Low, Arizona (“project”). The Complaint reflected a contract amount of $21,500.00.
3. The Registrar performed an inspection of the project on August 15, 2023. Thereafter, the Registrar issued a Directive and then a revised Directive, dated September 29, 2023, requiring Respondent to remedy the following violations by October 16, 2023, by appropriate means:
Compliance Item: 1 - Not completing the porch and connection between the front and back porch. The metal roof has not been done and my roof in uncovered
Investigator’s Observation: At the time of the inspection neither the porch/deck cover and/or the roofing was completed. Respondent's roofing license (CR-42) does not allow them to construct the porch cover. Respondent's minor home improvement license (R-62) is inactive and is also not an appropriate license to construct to cover. Respondent is working out of scope on the porch cover. There was a concern stated prior to the jobsite inspection by the Respondent that there may be broken trusses on the back side of the home. I walked to roof and the only spots that sunk when walking appeared to be in-between the trusses. However, there is no access to the attic space to investigate further. Respondent shall complete the work as contracted and in an appropriate manner. Prior to the commencement/completion of the work; the complainant shall verify that there is no damage to the trusses.
NOTE: Respondent can only perform work on items they are appropriately licensed for. Some contracted items the respondent will not be able to do. The only resolution for these items is an alternate agreement such as, but not limited to a financial resolution with the Complainant.
Governing Rule: Violation of any rule adopted by the Registrar; Namely A.A.C. R4-9-108(a): A contractor shall perform all work in a professional and workmanlike manner.
4. As Respondent had not taken any corrective action, the Registrar then issued a Citation to Respondent, dated November 15, 2023, for the alleged violation of the following:
a. A.R.S. § 32-1154(A)(3) (violation of Arizona Administrative Code Rule 4-9-108(a)) for failure to perform work in a professional and workmanlike manner);
b. A.R.S. § 32-1154(A)(12) (violation of A.R.S. § 32-1158(A) for failure to include required information in contract);
d. A.R.S. § 32-1154(A)(16) (knowingly contracting beyond the scope of the license;
e. A.R.S. § 32-1154(A)(22) (failure to perform corrective action without valid justification).
5. The Registrar issued a Notice of Hearing that after a continuance that set a hearing for April 2, 2024, at 9:00 A.M. At the hearing, Complainant Mark MacVittie Strung testified on his own behalf and presented the testimony of Donna Adair: Timothy Worth, Vice President, testified on behalf of Respondent. Chris Allison, the Registrar Investigator (“Investigator”) testified on behalf of the Registrar. The Tribunal received and admitted Respondent’s Exhibit Nos. 1 - 2; Complainant did not submit exhibits.
6. The Investigator testified on behalf of the Registrar consistently with the Directive and his job inspection notes and the photographs he took. He testified that he asked for but did not receive substantiation from Respondent that Complainant was not responding to Respondent’s attempt to do corrective work. He also testified that Respondent did not provide him with a copy of the police report or any other documentation reflecting that Respondent was not allowed on Respondent’s property.
He further testified that Respondent’s roofing license did not allow construction of a patio cover and that the construction of a patio cover to which roofing would be applied would be out of scope of Respondent’s license. He added that Respondent could not have another contractor construct the patio cover because a contractor cannot subcontract work that that is not within the scope of the contractor’s license.
He lastly stated Respondent’s contract with Complainant was missing the date of the contract and the estimated completion date of the project.
7. Complainant Mark MacVittie testified, as herein relevant to the Citation, that Respondent performed no corrective work. He stated there was no restraining order against Respondent and that the police report only reflected that Respondent could not come on Complainant’s property when Complainant was not present. He explained he called the police when Respondent threatened to tear down work Respondent had already done.
He further stated he hired an engineer to inspect the project who informed him the patio cover needed another beam for support and that the existing beams were too far apart and not to code. He stated Respondent completed the roofing in the front of the house but not in the back. He testified the gap between front and back deck caused the dispute, and that the parties disagreed as to whether their agreement included the walkway between the patios. He also stated he told Respondent during the course of project that he had discovered that Respondent’s licenses were suspended or inactive and that when he informed Respondent, Respondent reactivated its roofing license but not its minor home improvement license.
8. Donna Adair testified on behalf of Complainant, as herein relevant to the Citation, that there was no restraining order. She further stated they called the police because Respondent threatened to tear everything down, and also because they did not want Respondent on the property when they were not present.
9. Timothy Worth testified on behalf of Respondent, as herein relevant to the Citation, that after Complainant called law enforcement, he refused to go on the property without Navajo County Sheriff’s Department’s permission. He also testified that he would not finish the back of the roof until the broken trusses were repaired.
He stated he had a “handyman license” to construct the patio cover, which the Registrar’s web site reflects is actually a Specialty Residential R-62 Minor Home Improvements license. He stated he did not know it had been inactive since 2020, or that his roofing license was suspended due to nonpayment, until Complainant brought it to his attention. He further stated he immediately reinstated both licenses, but he could not explain why the Registrar’s web site did not reflect reinstatement of his minor home improvement license. He testified the patio cover portion of the contract with Complainant was $4,500.00.
10. Administrative notice is taken of Respondent’s prior license record on the Registrar’s web site which reflects that Respondent’s License No. 272850 was first issued on June 24, 2011, and is in active status. Such prior license record also reflects one Open case, no Disciplined case, and no Resolved/Settled cases.
CONCLUSIONS OF LAW
1. The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” BLACK’S LAW DICTIONARY 1182 (Rev. 6th ed. 1990).
4. A.R.S. § 32-1154(A) includes in pertinent part among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, any of the following acts:
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3. Violation of any rule adopted by the registrar.
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12. Failure in any material respect to comply with this chapter.
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16. Knowingly contracting beyond the scope of the license or licenses of the licensee.
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22. Failure to take appropriate corrective action to comply with his chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.....
5. With regard to the “violation of any rule adopted by the registrar” under A.R.S. § 32-1154(A)(3) referenced in the Citation, the rule allegedly violated in this case was Arizona Administrative Code Rule 4-9-108(A) which requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”
6. With regard to the “failure in a material respect to comply with this chapter [Chapter 10 of Title 32 the Arizona Revised Statutes (A.R.S. § 32-1101 et seq.)]” referenced in the Citation, A.R.S. § 32-1158(A) in Chapter 10 requires in pertinent part that any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following nine items:
1. The name of the contractor and the contractor's business address and license number.
2. The name and mailing address of the owner and the jobsite address or legal description.
3. The date the parties entered into the contract.
4. The estimated date of completion of all work to be performed under the contract.
5. A description of the work to be performed under the contract.
6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes.
7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner.
8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract.
9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32-1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative....
7. A.R.S. § 32-1154(A)(3). Complainant has presented sufficient evidence to establish that Respondent failed to perform work in a professional and workmanlike manner and to establish that Respondent did not comply with Arizona Administrative Code Rule 4-9-108(a). There was no dispute that Respondent did not complete the project. While the Tribunal finds this to be more in the nature of abandonment of a contract, the Tribunal finds the failure to complete the project under these circumstances to be a failure to complete work in a professional and workmanlike manner.
8. A.R.S. § 32-1154(A)(12). Complainant has not presented sufficient evidence to demonstrate that Respondent failed in a material respect to comply with A.R.S. § 32-1158(A) with regard to the required contents of the written contract and consequently should not be disciplined for a violation of A.R.S. § 32-1154(A)(12). The evidence presented reflected the written contract between the parties was lacking the date of the contract and the estimated completion date. The Tribunal requested that Respondent submit a new form contract within 20 days of the close of the hearing that was in compliance with A.R.S. § 32-1158(A), but no such submittal had been received to date. However, upon further reflection, the Tribunal finds the contract that lacks only the contract date and estimated completion date, while not fully compliant with A.R.S. § 32-1158(A), to not be a failure “in a material respect” to comply with A.R.S. § 32-1158(A).
9. A.R.S. § 32-1154(A)(16). Complainant failed to present sufficient evidence to demonstrate that Respondent knowingly contracted beyond the scope of its license Consequently, The Tribunal finds that Respondent should not be disciplined for a violation of A.R.S. § 32-1154(A)(16). First, it is questionable whether Respondent’s construction of the patio cover was beyond the scope of Respondent’s license. However, even if it was, the evidence is insufficient to show Respondent “knowingly” contracted beyond the scope of its license or knew its license was inactive during the course of the project.
The Investigator testified that the construction of the patio cover was beyond the scope of Respondent's minor home improvement license (R-62), which was inactive in any event during the course of the project. According to the Investigator, even if active, he stated it was not the appropriate license under which to construct the patio cover.
However, the Tribunal was persuaded that Respondent believed its license was the appropriate license to do such work, and therefore did not knowingly contract beyond the scope of its license. The Tribunal further finds that it was reasonable for Respondent to believe its minor home improvement license permitted it to construct a patio cover. According to the Registrar’s web site, for projects of $5000.00 or less, a Specialty Residential R-62 Minor Home Improvements license “allows the licensee to perform remodeling, repairs, and improvements to existing structures or appurtenances...” which shall not include “load bearing carpentry work (with the exception of patio or porch covers).” Thus, this type of license appears to permit load bearing carpentry work for a patio cover, precisely what Respondent was constructing. Further, Mr. Worth testified the patio cover portion of his contract with Complainant was charged at $4,500.00, and there was no evidence presented to refute that claim. Thus, it appears Respondent could properly construct, or reasonably believe it could properly construct, the patio under a minor home improvements license.
It might be argued that Respondent was contracting beyond the scope of its minor home improvement license because the license was inactive. However, the evidence was further insufficient to show that Respondent knew it was inactive. The evidence suggested that Respondent was working with a suspended roofing license and an inactive minor home improvement license during the course of the project. When Complainant brought to Respondent’s attention that Respondent’s licenses were not active, Respondent immediately reinstated its roofing license and claimed to have reinstated its minor home improvement license, even Mr. Worth could not explain why reinstatement of the latter was not reflected on the Registrar’s web site. No evidence was presented to refute Respondent’s claim that it attempted to reinstate its license. Further, after Respondent was informed its minor home improvement license was inactive, whether it was reinstated or not, the evidence was unclear whether Respondent then proceeded with any further work on the construction of the patio cover, or instead stopped such work due to the dispute between the parties that arose.
Thus, the evidence was lacking to show that Respondent knew the scope of its home improvement license did not cover the construction of the patio cover (although it appears to that the Tribunal that such was within the scope). The evidence is further lacking that Respondent knew its home improvement license was inactive during the course of any construction of the patio cover.
10. A.R.S. § 32-1154(A)(22). Complainant has presented sufficient evidence to establish that Respondent failed to perform any corrective action without a valid justification and consequently has established that Respondent should be disciplined for a violation of A.R.S. § 32-1154(A)(22). Mr. Worth argued that he did not perform corrective work because Complainant had called law enforcement and that he was not going to go on the property without law enforcement permission. However, the police report, dated July 27, 2023, reflected that the matter was considered a civil matter only, and that the officer as a courtesy contacted Mr. Worth to advise him that Complainant did not want Respondent on his property when Complainant was not present; there was no directive from law enforcement. (Respondent’s Exhibit No. 1). Further, even had Respondent needed such law enforcement permission, which is doubtful, there was no evidence presented that Respondent sought such permission in order to start corrective work.
Respondent also argued that it had no idea when Complainant would be present at the property in order to perform corrective work. However, Respondent presented no evidence of written documentation showing that it ever requested dates from Complainant to perform corrective work.
Lastly, Respondent seemingly contended that it could not perform corrective work or complete the project because of a vague allegation of broken trusses. However, although Respondent claimed to have photographs to substantiate this, they were never submitted by Respondent prior to or at the hearing. Further, Respondent failed to explain how broken trusses would prevent any or all corrective action from being completed.
Accordingly, the Tribunal finds that none of Respondent’s foregoing excuses rise to the level of a valid justification for not performing corrective work.
11. In conclusion, the Tribunal finds that Complainant has presented sufficient evidence to established cause to discipline Respondent’s license for a violation of A.R.S. § 32-1154(A)(3) and A.R.S. § 32-1154(A)(22).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of this Order, T And S Roofing, LLC‘s, License Number 272850 is suspended for two (2) days.
IT IS FURTHER RECOMMENDED that pursuant to A.R.S. § 32-1154(E), Respondent must pay to the Registrar, a civil penalty of $250.00 in certified funds on or before 30 days from the effective date of this Order.
IT IS FURTHER RECOMMENDED that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of the outstanding prior civil penalty.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, April 22, 2024.
/s/ Roger Geddes
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
c/o Legal Department
Registrar of Contractors
1700 W. Washington St., Ste. 105
Phoenix, AZ 85007
T And S Roofing LLC, Respondent
P.O. Box 51573
Mesa, AZ 85208
[email redacted]
Mark MacVittie, Complainant
6366 Homestead Trl.
Show Low, AZ 85901
[email redacted]
By: OAH Staff